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Posts Tagged ‘courts’
MOTHERS FILE INTERNATIONAL COMPLAINT AGAINST UNITED STATES- IACHR
In domestic law on August 18, 2011 at 9:16 pmMother’s day complaint claims United States courts violate human rights of abused women and children.
On the heels of the Jessica Gonzales Ruling at the IACHR (International Commission Human Rights) Comes the following petition.
You can read the Petition in it’s entirety at the Stop Family Violence site.
http://www.stopfamilyviolence.org/info/custody-abuse/legal-documents/petition-to-inter-american-commission-on-human-rights/full-text-of-iachr-petition
Amplify’d from www.stopfamilyviolence.org
“For more than 30 years U.S. judges have given custody or unsupervised visitation of children to abusers and molesters putting the children directly at risk,” says Dianne Post, an international attorney who authored the petition. “These horrendous human rights violations have been brought to the attention of family court systems, and state and federal governments, to no avail. We turn now to international courts to protect the rights and safety of US children.”
The complaint details several cases with documented medical evidence of child sexual abuse, yet in each instance the father who was accused of abuse was given full custody of the children. Several of the mothers were jailed by the courts because of their persistent efforts to protect their children from abuse, several were ordered not to speak of the abuse and not to report abuse to authorities. Every mother was denied contact with her child for some period of time though none was ever proven to have harmed them.
“My life was completely shattered apart on that day and my childhood was destroyed,” said Jeff Hoverson, the adult child petitioner, about the day a family court judge ordered sheriff deputies to deliver him into the custody of his abuser. “It was as if I was just kidnapped. I was torn from everything I knew….I was made into a possession rather than a child.” Hoverson endured years of trauma and fear living in his father’s home before escaping and returning to his mother at age 17. He is haunted by years of feeling helpless to prevent his father’s night-time visits to his sisters’ bedrooms.
“The cases in this petition represent the proverbial tip of the iceberg,” says Irene Weiser, executive director of the online organization Stop Family Violence. “We are contacted by an average of three protective mothers each week who have lost custody to fathers accused of child abuse – in many cases with supporting medical evidence. This is a nationwide crisis of enormous proportion.”
“The lives of thousands of children and mothers have been irreparably harmed by family courts across our nation,” says Joyanna Silberg, Ph.D., executive vice-president of The Leadership Council on Child Abuse and Interpersonal Violence, another national organizations supporting the petition. “The years of trauma and psychological abuse because of the courts’ failings result in lasting emotional damage to the children they are supposed to protect.”
Studies of gender bias in the courts, conducted in the 1980’s and 90’s, found disturbing trends of courts minimizing or excusing men’s violence against women, and favoring the abusers. In 1990 the United States Congress passed a resolution recommending the prohibition of giving joint or sole custody to abusers. Seventeen years later, the practice continues unabated. Ten years ago today, leading national organizations were joined by members of Congress in a protest in Washington D.C. to again raise awareness about the problems in family courts. Today, petitioners say, the problem is systemic and widespread in family law courts across the nation.
The petition seeks a finding from the Inter-American Commission on Human Rights that the U.S. has violated the Declaration of the Rights and Responsibilities of Man and the Charter of the Organization of American States and a statement of the steps that the U.S. must take to comply with its human rights obligations in regards to battered women and children in child custody cases.
The Inter-American Commission on Human Rights was created in 1959 and is expressly authorized to examine allegations of human rights violations by members of the Organization of American States, which include the United States. It also carries out on-site visits to observe the general human rights situations in all 35 member states of the Organization of American States and to investigate specific allegations of violations of Inter-American human rights treaties. Its charge is to promote the observance and the defense of human rights in the Americas.
Dianne Post, a 1980 graduate of the University of Wisconsin law school, has worked on issues of gender based violence since 1976. In addition to private practice and legal aid, she has taught legal classes and been a consultant working or living in Russia, Cambodia, Hungary and some dozen other countries. She is currently in Vladivostok, Russia.
In addition to The Leadership Council on Child Abuse and Interpersonal Violence, other national organizations supporting the international lawsuit include: National Organization for Women and the NOW Foundation, National Coalition Against Domestic Violence, Justice For Children, National Family Court Watch Project, Legal Momentum, Family Violence Prevention Fund, National Alliance to End Sexual Violence, Domestic Violence Report, Sidran Traumatic Stress Institute, and the National Center on Sexual and Domestic Violence. The petition is supported by many state organizations as well.
In December 2005, the American Civil Liberties Union filed a petition against the United States with the Inter American Commission on Human Rights for their failure to protect Jessica Gonzales’ three children from their abusive father, who murdered them. Their petition, the first of its kind, asserted that domestic violence victims have the right to be protected by the state from the violent acts of their abusers.
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Domestic Violence Safe Courts Act
In domestic law on July 24, 2011 at 1:07 pmEven when things are going well personally and professionally, you can’t work on protective mother issues without regularly receiving a cruel jolt of reality from the broken court system. I just received such a jolt with the mistaken conviction of a protective mother for perjury regarding her complaints about her abuser’s assault. Surely the jury could have made a better decision if they could have been told of the context that courts routinely fail to recognize domestic violence and avoided the myth most people have heard that women frequently make false allegations of abuse.
Amplify’d from timesupblog.blogspot.com
The mother in this case has spoken of the high price she must pay for trying to protect her children. She had suffered the loss of her children and knowing they are continuing to suffer abuse. She has been ruined financially and for the second time faces bogus criminal charges and jail. And so in honor of this dear friend and all the too many other mothers in similar circumstances, I would like to propose legislation to make it safe for battered mothers and their children when they come to court. Repeatedly, protective mothers come to court confident that the judge and other court professionals will protect them from their abusers, since the evidence as far as the well-being of the children is so clear. And repeatedly, the inadequately trained court professionals, relying on outdated information and discredited practices, most of which were adopted 30+ years ago at a time when no research was available, instead helps the abuser to maintain control over his partner and to punish her for revealing his abuse. For years we have debated solutions to these repeated tragedies, but before any reform is possible, we must make the courts safe for battered women and their children.
The Importance of Findings
While findings do not have the force of law, they do explain the purpose of the law and the intent of the legislature. It is totally appropriate and advisable for attorneys and protective mothers to cite such findings in support of their interpretation of the law, and such considerations should be persuasive.
The findings should state very directly that the present court response is working poorly for women and children in domestic violence custody cases and that the intent of the legislature is to create fundamental changes in the way courts respond to such cases. The intent of the legislatures when they passed laws requiring courts to consider domestic violence in custody and visitation decisions was for the courts to take domestic violence seriously, based on the research that demonstrated the severe harm to children of witnessing abuse, but the outdated and discredited practices widely used in the court system have undermined the courts’ ability to provide the protections and safety the legislatures thought they were creating.
The courts frequently fail to recognize valid complaints about domestic violence. Court professionals often do not have adequate training in domestic violence and often rely on mental health professionals who have little or no training or understanding about the dynamics of domestic violence. There are many normal behaviors by battered mothers that inadequately trained professionals use to discredit allegations of abuse that are not probative. At the same time courts often limit their focus to physical abuse and fail to use the evidence available to recognize the pattern of controlling and coercive behavior. Best practices require that professionals without extensive training in domestic violence (which is almost all of the professionals used in the custody courts) should consult with domestic violence advocates or other experts. Courts rarely use such best practices, and many judges, like the judge in the Binghamton case, mistakenly believe that several years on the bench is an adequate substitute for genuine expertise and familiarity with up-to-date scientific research.
The courts’ response to allegations of child sexual abuse is particularly harmful. Sexual abuse is hard to prove because, for obvious reasons, there are rarely any witnesses except for the child. Young children may not have the language to describe what happened; older children are often reluctant to reveal the abuse because of threats or just out of loyalty to their abuser. Inadequately trained professionals often expect physical proof, but many forms of sexual abuse leave no physical evidence, and the delay before a child reveals the abuse may cause physical evidence to be unavailable. These professionals often expect children to discuss very painful and embarrassing events without taking the time to create a trusting relationship and to use play therapy or other techniques that work best with younger children. Experts know that children often recant valid complaints, but recantations are routinely treated as if they were convincing proof the mothers made deliberately false reports.
In an attempt to treat all parties fairly, courts often believe they must treat the parties the same. This is often expressed in the view that when parents come to court they must be treated equally. What is left out is any consideration of PAST PARENTING PRACTICES.. There is a difference between men and women, particularly in a society that continues to provide unearned yet often invisible privileges to men. Considering the differences between men and women is not unfair to men, but failing to consider them is unfair to women. The refusal of courts to speak of these differences, despite widespread gender bias confirmed by commissions sponsored by courts in over forty states and other research, results not in fairness or equality of how the courts treat the parties but in a huge advantage to men, especially abusive men.
Probably the biggest advantage given to fathers in custody cases stems from the widespread myth that women frequently make false allegations of abuse. A recent Department of Justice Study led by Dr. Daniel Saunders shows that evaluators with little training in domestic violence tend to believe this myth and thus make recommendations that work poorly for children. Of course, these false assumptions are often hidden from the judge, but if we don’t speak openly about the difference between men and women, the biases in favor of men will continue to make the courts unsafe for women and children.
At the same time, studies, particularly one led by Nicholas Bala, establish fathers in contested custody cases are sixteen times more likely than mothers to make false allegations against the other parent. I want to be clear that this is not to say women in general are more honest than men; rather, this is limited to what goes on in contested custody cases. A large majority of fathers in such cases are abusers who are using the custody tactic to maintain control over former partners. It is based on the belief that she has no right to leave, so therefore, the use of any tactic, including raising false allegations, is justified. This is particularly important for prosecutors and child protective workers to realize, so that they don’t place the resources and authority of the government on the side of abusers.
This problem is particularly exacerbated by the ability of abusers to manipulate other people, including professionals. Those who believe they have the ability to tell who is lying just by observing them are at even greater risk of being manipulated.
One of the fundamental mistakes made by the court system is treating contested custody cases as “high conflict,” which implies that both parties are acting out their anger towards the other party through the children. In fact, most of these cases are domestic violence cases. The courts have adopted a lot of practices designed to encourage the parents to cooperate and to bring the parties together. Abusers love this, because it means forgetting about past history (his abuse) and gains him access to his victim. When mothers resist cooperating with someone who has hurt her and her child, she is viewed as unfriendly and often is severely punished. This is a prime example of blaming the mother for the actions of the father, something repeatedly uncovered by the state gender bias reports. The research establishes that the only methods that have been shown to change abusers’ behavior are accountability and monitoring, but the courts, which are not used to looking to up-to-date research for answers, are doing just the opposite.
Needed Changes in the Law and Priorities
One of the problems in the court system is that the standard “best interests of the child” standard is subjective and often leads to focusing on less important issues. Most states have laws or case decisions that enumerate issues the court must consider in deciding custody and visitation. Courts often focus and decide custody based on cooperation between the parties, negative statements about the other parent, financial considerations, quality of the house or apartment or other similar issues. It is not that these are not valid issues that should be considered in appropriate cases, but too often these kinds of issues trump issues that are vital to the well being of the children. The first priority must be the safety of the children. DUH! It is frightening how often this is not the priority. When there are safety issues, we need a risk assessment rather than a traditional evaluation that focuses on less important issues and often doesn’t have the understanding to recognize the risks. The second priority should be arrangements that give children the best chance to reach their potential. It is hard to imagine anyone seriously objecting to these priorities, but it is not what the courts are doing today.
The research about primary attachment is not controversial. Whichever parent provides most of the child care during the first couple of years of the baby’s life is the primary attachment figure and this does not change even if the living arrangements do. A child separated from their primary attachment figure is at greater risk of depression, low self-esteem, and suicidality when older. It cannot be right to impose these risks on a child unless the primary attachment figure presents a safety risk, such as someone who is a drug addict or beats the child. Negative statements about the other parent do not pose such a safety risk and have not been shown to create the long term harm of losing the primary attachment figure, but courts routinely place more emphasis on negative remarks because they have been taught to view the cases as “high conflict.”
The range of harm to children from witnessing domestic violence is even greater. Such children are at increased risk for engaging in a wide variety of dysfunctional behaviors that can ruin their lives. Furthermore, domestic violence is based on a belief system so the end of a relationship is not likely to make the abuser safe. He will probably abuse future partners, so the children will witness further domestic violence if he is given custody or unsupervised visitation.
Training in domestic violence for court professionals has been a common component of the courts’ response to domestic violence for many years, yet still the courts are getting a large percentage of domestic violence cases spectacularly wrong. Many judges and other professionals don’t attend such trainings or don’t pay attention out of a belief they already know everything or hostility to the topic. Too often the trainings have included misinformation that makes the situation worse while creating the illusion of addressing the problem.
The research that shows the frequency with which fathers in contested custody cases kill their children, often with the unintentional assistance of the court, or receive custody and unsupervised visitation despite a history of abuse ought to create an urgency for changing the status quo. The Safe Court Act must provide for the retraining of judges and other court personnel. Common misconceptions like the myth women frequently make false complaints, domestic violence ends when the parties separate, children are unaffected by witnessing abuse and mistaking domestic violence cases as “high conflict” must be addressed and corrected. Then, instead of general domestic violence training, specific topics must be taught including Recognizing Domestic Violence, Gender Bias, Effects of Domestic Violence on Children, Critical Thinking About the Use of Mental Health Professionals and More Appropriate Responses to Allegations of Child Sexual Abuse. Finally, such trainings should be sponsored or co-sponsored by an organization whose primary focus is ending domestic violence.
At the start of the movement to end domestic violence, the focus was mostly on physical abuse. But the harm to women and children is not limited to physical abuse, so there is no reason to limit the definition of domestic violence when making custody decisions. Domestic violence should be defined as a pattern of intimidating, controlling and coercive tactics by one party designed to permit that party to control their partner and make the major decisions in the relationship. These abusive actions result in the victim becoming afraid of the abuser.
Domestic violence experts are clear that in cases involving domestic violence as defined above, the best outcome for the children is custody for the non-abusive or less abusive parent and at least initially supervised visitation for the abusive parent. While many states have a presumption for this child-friendly outcome, too often it is limited by higher standards of proof or level of abuse. The harm to children is not limited to what is considered more severe abuse so there is no reason to continue such limitations on protecting children.
Particularly harmful to children is the common practice where the court fails to confirm the mother’s allegations of abuse and then punishes or retaliates against the mother if she continues to believe the father is dangerous despite the court’s finding. We found that when the court confirms a father’s abuse, it does not further penalize him for continuing to deny his abuse, even though his continued denial is far more harmful than the mother’s expressed fear of the father. This practice is bad because of the frequency that courts fail to recognize valid allegations of abuse; the harm of taking the primary attachment figure out of a child’s life is far more harmful than any benefit the court thinks it is creating. The law must provide that parents will not be penalized for good faith allegations, and the practice of denying children a meaningful relationship with safe, protective parents must be discouraged.
Abusers tend to control the family finances and often use the family resources for legal and other resources while denying the same benefits to the victim. This is exacerbated by a common abuser tactic of using aggressive litigation strategies to bankrupt the victim. Courts must be encouraged to act more assertively to level the playing field by making the person controlling the family funds also provide funds for the other parent’s legal needs. This will lead to fairer outcomes and discourage excessive litigation, since the abuser doesn’t benefit from excessive motions if he has to pay for both lawyers.
The research is very clear that women rarely make false allegations of abuse. They do so only one or two percent of the time, but there is a widespread myth that abuse claims are frequently false. At the same time, fathers involved in contested custody cases are sixteen times more likely to make false allegations. Prosecutors, in particular, need to be trained about this common tactic so that they can avoid being manipulated to help an abuser continue his abuse as the prosecutor in the Binghamton case mistakenly did. Similarly, child protective workers, lawyers and judges need training with this information. We have seen many child protective workers refuse to investigate allegations by mothers involved in contested custody cases on the (false) assumption she is trying to gain an advantage in the litigation, but take seriously (false) allegations by fathers involved in contested custody. Obviously, each case must be investigated separately, but they need to be familiar with the research so they can understand the context.
Many communities have developed practices where child protective agencies work together with the local domestic violence agency. They cross-train each others’ staffs and when child protective caseworkers have a case that may involve domestic violence, the worker consults with a domestic violence advocate. This has resulted in a greater ability to recognize domestic violence and respond in ways that benefit children. This should be considered best practices. Similarly, ethical considerations require psychologists and psychiatrists to consult with experts in areas they are not familiar with. Few court-appointed mental health professionals are experts in domestic violence but they rarely consult with domestic violence advocates or experts and courts do not discredit them for failing to do so. The law should require such consultations which must be understood as best practices.
The research shows the widespread use of mental health professionals in contested custody cases is problematical. Psychologists rely on psychological tests that were not created for the populations seen in custody courts and are based on probability, so that under the best of circumstances the results apply to only 55-65% of the parties, but this percentage is even lower in cases involving domestic violence. Frequently, we see mothers discredited because of results that show defensiveness, fear and other normal reactions to their partner’s abuse. When courts fail to recognize the abuse, mothers are pathologized as paranoid or delusional when there is no pathology in other parts of their lives. Accordingly courts must use much more critical thinking in the use of mental health professionals. This expense and delay should only be used when there are genuine mental health issues involved in the case. In cases involving allegations of domestic violence or child abuse, a risk assessment using probation or other investigators and domestic violence experts familiar with lethality risks would be more useful.
Courts can save substantial time and money by having an early evidentiary hearing on allegations of domestic violence. The sole issue is whether the allegations are valid. If they are, the non-abusive or less abusive parent receives custody and the abuser initially receives supervised visitation. There is no need for evaluations, GALs or the consideration of less important issues that often distract attention from issues that most affect children. Cases that now take many months or years can be resolved in a few hours and children will quickly know who they will be living with which allows them to start the transition and healing process more quickly.
Conclusion
We have a court system that is failing to protect battered mothers and their children because they are relying on outdated and discredited practices and beliefs that were developed at a time when no research was available. Every year, the custody courts are sending 58,000 children to abusers for custody or unprotected visitation. And every year abusive fathers involved in contested custody cases kill at least one hundred precious children, often with the unwitting assistance of courts using these standard flawed practices. Legislators and judges cannot justify continuing practices that are working so badly for our children and must operate with an urgency to reform the broken system.
These outdated and discredited practices have allowed abusers to enlist the court system to help them maintain control over their victims after they try to leave and in many cases courts continue the abuse by punishing mothers trying to protect her children. We have examined thousands of disturbing cases like the one in Binghamton where safe protective mothers are severely punished in retaliation for attempting to protect their children. The mothers lose custody and often are restricted to supervised or no visitation. They face financial ruin, court sanctions, contempt and even jail. Many prosecutors like the one in Binghamton are manipulated by abusers to bring bogus charges against protective mothers. A review of these extreme outcomes demonstrates that these decisions are almost always wrong.
Urgently, we need a law to make it safe for protective mothers to come into our courts. Our courts and our laws were designed to provide safety for battered women and we must make this true in practice instead of just theory. We must make sure that the court system can no longer be used and manipulated by abusers to retaliate and punish mothers for the crime of seeking to keep their children safe.
Barry Goldstein is a nationally recognized domestic violence expert, speaker, writer and consultant. He is the co-editor with Mo Therese Hannah of DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY.
DOMESTIC VIOLENCE SAFE COURTS ACTWHEREAS: The custody court system is broken resulting in thousands of children being sent for custody or unprotected visitation with abusers and hundreds of children and battered women being murdered because of the frequency with which courts fail to recognize the common abuser tactic of seeking custody in response to their victim leaving as a way to maintain control or punish her for leaving, and
WHEREAS: The custody court system adopted practices to respond to domestic violence when it first became a public issue and no research was available. These standard practices work poorly for children but have become deeply ingrained so that the courts continue to rely on outdated and discredited practices that hurt children, and
WHEREAS, The custody courts routinely fail to recognize valid allegations of domestic violence because they discredit the charges based on normal responses victims made to the abuse and fail to look for the pattern of coercive, intimidating and controlling behavior that experts understand is the hallmark of domestic violence, and
WHEREAS, The custody court system does a particularly poor job in responding to allegations of child sexual abuse rejecting 85% of such allegations although a majority of the allegations are true. These mistakes are caused by the widespread use of poor practices and bias and the reluctance to believe someone successful in other parts of their lives could do something so heinous. The courts exacerbate this common mistake by frequently retaliating against safe, protective mothers who made good faith allegations of abuse by denying the children a meaningful relationship with their mother, and
WHEREAS, Research establishes that court professionals with inadequate training in domestic violence routinely rely on the common myth that women frequently make false allegations of abuse to gain an advantage in the litigation. Courts usually fail to discredit professionals who rely on this harmful myth, and
WHEREAS, Research establishes that a large majority of contested custody cases cannot be settled because they involve abusive fathers, custody courts have been taught to treat these cases as “high conflict” by which they mean both parents are acting out of anger at their ex-partner and hurting the children in the process. This faulty assumption leads to courts failing to recognize the domestic violence and punishment of mothers for trying to protect themselves and their children, and
WHEREAS, Research establishes that fathers in contested custody cases are sixteen times more likely than mothers to make false allegations than mothers, court personnel are usually ignorant of this research and manipulated by abusers to believe false allegations. Prosecutors, judges, child protective caseworkers and other similar professionals need training to avoid being manipulated to help abusers continue to punish their victims, and
WHEREAS, There are real and legitimate differences between men and women particularly with respect to domestic violence and parenting. Repeatedly, courts have misconstrued the policy to treat mothers and fathers equally to mean regardless of past parenting. If one parent has provided most of the child care and is the primary attachment figure or one parent has been abusive, it is not in the best interests of the children to treat the parents equally, and
WHEREAS, As a result of these and many other common mistakes and outdated practices, the court system has made it unsafe for protective mothers and their children to seek assistance of the courts to protect them from abusers. This law is designed to change the failed practices in order to make sure victims of abuse will be safe in our court system and not subject to retaliation for trying to protect themselves and their children.
1. Definition: For purposes of custody and visitation determinations and consistent with the harm caused to children in witnessing domestic violence, domestic violence are tactics one intimate partner engages in against the other intimate partner. The purpose of the tactics is to coerce, intimidate and control the abuser’s partner so that the abuser can make the major decisions in the relationship. Domestic violence is not limited to physical assaults and includes emotional, psychological, financial and litigation abuse. Most domestic violence is legal, but effects children negatively so that the courts should consider these tactics. Domestic violence also includes tactics to isolate the victim from friends, family and professionals who might provide support and assistance. Context is critically important in understanding domestic violence and acts that look the same may be very different because of the context and affect of the tactics. Court professionals must look at the pattern of domestic violence tactics in order to recognize domestic violence and consider which partner is afraid of the other partner as a result of the abusive tactics.
2. The best interests of the child: The first priority in custody and visitation decisions shall be the safety of the child. Risk assessments and lethality studies are more useful in considering a child’s safety than traditional evaluations. The second priority in custody and visitation decisions shall be arrangements that give the child the best opportunity to reach their potential Research establishing the long term harm for children who witness domestic violence or to be separated from their primary attachment figure provide the kind of information needed to properly consider what arrangements are most likely to help children reach their potential.
3. Any court considering custody, visitation, orders of protection, criminal, tort or any other issues that involve a determination of whether domestic violence was committed or the proper response to domestic violence shall look at the specialized body of knowledge and research available such as contained in DOMESTIC VIOLENCE ABUSE and CHILD CUSTODY, co-edited by Mo Therese Hannah and Barry Goldstein, THE BATTERER AS PARENT, written by Lundy Bancroft and Jay Silverman, the Department of Justice Study led by Daniel Saunders, the many books and articles cited in these works, and other similar examples of scientific research about domestic violence particularly in the context of child custody. If a court uses expert testimony or reports in such cases, such experts shall be expected to be familiar with this up-to-date research about domestic violence. Such experts will either possess substantial expertise about domestic violence or consult with someone who has such expertise.
4. Any court professionals with responsibility for cases that involve issues related to domestic violence shall undergo retraining concerning domestic violence. Such retraining will include information about common mistakes made as a result of using the common outdated and discredited practices used in custody and other courts and the harm such practices have caused. The retraining will also focus on avoiding common myths about domestic violence such as the myth women frequently make false allegations to gain an advantage in litigation, that abusers are no longer dangerous after the relationship ends, that only physical abuse affects children and that children always do better with both parents in their lives. The new training shall include how to recognize domestic violence, gender bias, the effects of domestic violence on children, critical thinking in the use of mental health professionals and appropriate responses and practices regarding allegations of child sexual abuse. The required training shall be sponsored or co-sponsored by an organization whose primary function is working to end domestic violence.
5. Based upon the serious harm witnessing domestic violence causes children, most experts recommend that where courts find by a preponderance of the evidence that one party has engaged in a pattern of coercive, intimidating and abusive behavior, the non-abusive or less abusive parent shall receive custody of the children and the abusive parent shall at least initially be limited to supervised visitation. In custody cases in which there are allegations of domestic violence, the court will quickly schedule an evidentiary hearing limited to the issue of domestic violence. There is no need for the appointment of an attorney for the children or an evaluator as the hearing is limited to whether or not the allegations of domestic violence are true. If the allegations are proven by a preponderance of the evidence the non-abusive or less abusive parent shall receive custody and the abusive parent shall initially receive supervised visitation. If the allegations of domestic violence are not proven by a preponderance of the evidence, the court shall remain open to later additional evidence which taken together with the earlier evidence becomes sufficient to establish the allegations of domestic violence.
6. The available scientific research establishes that the only responses that have been shown to change abuser’s behavior are accountability and monitoring. Accordingly, anger management, therapy and substance abuse treatment shall not be used in response to abusive behavior, but may be used for other problems. When the court orders supervised visitation in response to a finding of domestic violence, in order to be considered by the court for unsupervised visitation, the offender must complete a batterer program, acknowledge responsibility for the abuse, promise never to commit domestic violence again and express to the children the wrongness of the abusive behavior. If the offender is granted the privilege of unsupervised visitation and commits any further acts of physical abuse to a partner or children, the unsupervised visitation shall be permanently ended.
7. While both parties should always be treated fairly, there are substantial differences between mothers and fathers and the attempt to treat both parties the same by ignoring these differences has led to widespread mistreatment of protective mothers in custody cases. Numerous flawed surveys by researchers unfamiliar with domestic violence have sought to gauge the relative abuse by men and women by counting the hits. In doing so they have missed the fact that men are generally bigger and stronger, hit harder and cause more serious injury. They have missed the fact that men and women hit each other for different reasons. Men hit to maintain control and to make the major decisions in the relationship and women hit in self-defense and to stop his abuse. There are exceptions, but these are the most frequent reasons. Most important it is very common for women to be afraid their partner will hurt or kill her so that she will do what he wants and it rarely happens that men are similarly afraid of female partners. When courts equate a woman’s assault in anger and frustration from a long history of abuse with the man’s assault as part of a long pattern of coercive and intimidating behavior they misunderstand the case. Similarly in our still sexist society women tend to do most of the child care and are usually the primary attachment figure. When courts ignore these circumstances in an attempt to treat both parties equally, they actually discriminate against the mother. Similarly practices that punish women for their anger or emotion after being abused or allow themselves to be manipulated by abusers further give unfair advantages to men. This is why gender bias committees appointed by courts in over forty states have found widespread favoritism towards men. Courts must be conscious of the difference between men and women and strive to avoid gender bias. As gender bias is often invisible to those engaging in it, judges shall encourage litigants and professionals to express concerns about gender bias and avoid retaliating for such complaints.
8. Financial control and abuse is often an important part of the pattern of abuse. Abusers often maintain an unfair advantage in court by virtue of having control of the family resources. This is often compounded by aggressive litigation strategies designed to bankrupt the victim. Courts shall take appropriate actions to level the playing field so that if one party is using family assets to pay legal and other fees, or has access to other resources, that party shall pay similar expenses for the alleged victim’s legal fees.
9. The courts shall use more critical thinking in determining whether to use mental health professionals as experts and to limit them to their areas of expertise. Courts shall not routinely appoint mental health evaluators in all contested custody cases. Such appointments shall be limited to cases where there is credible information to suggest one of the parents has a mental disorder that may interfere with the care of the children or other issues that require mental health expertise. Psychological testing was not created for the populations seen in custody court and shall not be used to make determinations about domestic violence. In cases involving allegations of domestic violence or child abuse, if courts require a professional investigation they shall use risk assessments and lethality studies rather than evaluations.
10. The only profession that works full time on domestic violence issues is domestic violence advocates. It is the policy of this state and of the courts to work to prevent domestic violence. Accordingly domestic violence advocates shall be treated by the courts as a community resource and not as if they were partisans. Communities that have programs where child protective agencies and domestic violence organizations work together have proven that consultation with domestic violence advocates helps the caseworkers recognize domestic violence and make recommendations that work best for children. Court professionals shall consult with domestic violence advocates when considering cases with allegations involving domestic violence.
11. The myth that women frequently make false allegations of abuse is unsupported by valid scientific research, but has been relied on by unqualified professionals in ways that place children in danger. The courts shall discredit any professionals who rely on this sexist myth and avoid appointing them to represent children or conduct evaluations or other services. Any theories based on this myth shall also be discredited.
12. The use of “friendly parent” theories has proven harmful to children because of its frequent use in domestic violence cases. This theory shall never be used in cases involving allegations of domestic violence. Any use of this theory must be modified so that the “unfriendly behavior” applies not just to actions that mothers would be more likely to engage in but also to behaviors more likely to be committed by fathers. Actions like failure to pay child support, failure to cooperate on immigration and visa issues, refusal to supply medical insurance and other similar behaviors must be considered if courts use “friendly parent” theories.
13. The policy in this state and for the courts is to prevent domestic violence. Courts shall do everything in its power to make it safe for victims of domestic violence and their children to come to court. Courts must avoid being manipulated by abusers or to help abusers control or punish their partners for leaving. Prosecutors must obtain training about the common abuser tactic of making false criminal complaints against their victims. Prosecutors should attempt to speak with both sides if practicable and to use their discretion not to use the powers and authority of their office to help an abuser maintain control over the victim. Courts must seek to avoid retaliatory actions against mothers seeking only to protect the safety of themselves and their children. When courts believe the alleged victim has violated laws or orders it must also consider the benefits and harm to children that any action it might consider would have.
14. Large numbers of children are living with abusive and inappropriate parents as a result of common mistakes custody courts have made in response to domestic violence cases. In particular these courts have not relied on up-to-date research and have often relied on inadequately trained professionals. The new research available and recognition of the frequency of serious mistakes in these cases shall be considered a change of circumstances for purposes of petitions designed to correct the earlier errors even if the time to appeal has expired or the appeal failed. The court system may develop expedited, but fair alternate procedures to hear applications for correction of mistakes in earlier domestic violence cases.
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The Pretend World of Custody Courts
In domestic law on July 24, 2011 at 1:05 pmThe Office of Violence Against Women (OVW) is the part of the US Justice Department that provides grants for programs designed to reduce and prevent domestic violence. They recently sponsored a forum for their staff and other professionals in various parts of the government to learn about the crisis in the custody court system. They heard from seven protective mothers, one very inspiring Courageous Kid and over a dozen of the leading experts in the country. It was a wonderful discussion based upon current scientific research and actual experiences and everyone seems to get it that the courts are routinely making catastrophic mistakes in failing to protect children and domestic violence survivors. The purpose of the forum was to consider the problem, causes and solutions. It was so wonderful to take part in a reality based discussion about domestic violence custody issues and to do so with people who may have the ability to promote the needed changes. And yet the next day if any of us walked into a custody court, the research and the reality that were an unquestioned part of the discussion at OVW would be missing in the pretend world that is the present custody court system
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Similarly, in December, I had the privilege of participating in a review of grant proposals concerning gender, violence and health. The Canadian Institute of Health brought leading experts in the field together to consider which grant proposals would be most beneficial to fund. This was a high level discussion in which all of the participants were familiar with current scientific research so that we could have a reality based discussion. I found it particularly interesting that the Canadian government could attract knowledgeable experts for $200 a day at the same time the courts pay or require litigants to pay thousands of dollars for a few hours to “experts” completely unfamiliar with up-to-date research who instead provide opinions based on their personal belief system and prejudices.
Our custody courts are a very insular system in which information and ideas that contradict the misinformation routinely relied on by court professionals are unwelcome. Custody courts started relying on mental health professionals at a time when no research about domestic violence was available and many people assumed domestic violence was caused by mental illness, substances abuse and the behavior of the victims. We now know the original assumptions are wrong and mental health professionals rarely have much expertise in domestic violence or child sexual abuse. Nevertheless the courts are so used to relying on professionals with inadequate training that they routinely refuse to hear genuine experts or treat their testimony with tremendous skepticism. Experts, government agencies and academicians relied on to make major decisions in the real world are treated with disrespect by the court system. Repeatedly I have heard judges suggest that when the (inadequately trained) GAL, evaluator and child protective caseworker all agree, it is unreasonable to consider any other view.
Abusers often impose a pretend world on their victims by denying and minimizing their abuse. They often blame their partners by claiming her behavior forced him to abuse her. It is often unsafe for the woman to challenge this pretend existence. Genuine experts agree that dealing with reality is an important part of the healing process after survivors leave their abusers. This makes the common court practice of cooperating with abusers to focus on pretend issues so harmful to battered mothers and their children.
Many years ago I tried to help a teenage girl whose father was sexually abusing her. She finally found a therapist she could trust and the courage to share her secret. He called the child protective agency, but their response was to remove the girl from her home so the father’s life would not be disrupted. They put her in a home for girls that included those there for criminal behavior. While at this home, she was assaulted and robbed. The caseworker refused to permit her to continue working with her therapist just when she needed him most and pressured her to recant her allegations. The caseworker threatened to send her to an even worse facility and she was also concerned about the trouble her father would face. When she recanted her allegations she was sent back to her home and forced to engage in therapy based upon the false assumption her allegations of abuse were wrong. At a time when she needed therapy in response to years of abuse, she was forced to engage in therapy to determine why she made false allegations.
More recently, I worked on a New Jersey case in which a young child reported to her mother that her father and his mother had touched her in the vicinity of her privates. She did not know the words to be more precise. The father immediately denied the allegations and claimed the mother was making deliberate false allegations. The unqualified professionals focused only on whether the child was molested or the mother made false allegations and when they could not find enough evidence of abuse after a flawed investigation assumed the allegations were false. They brought charges against the mother and eventually gave the abusive father custody and the mother supervised visitation. When the court professionals later learned of the father’s history of domestic violence and hired a qualified expert who used current research to recommend custody be restored to the mother, the court professionals ignored the information that undermined their mistaken finding. The mother was forced into therapy in which she had to prove she no longer believed the true allegations if she wanted unsupervised visitation with her daughter. Having escaped the pretend world imposed by her abuser by leaving him, the mother faced another pretend world imposed by the court.
These kinds of mistakes are common in the broken custody court system. Often they are caused by court professionals who use the bogus Parental Alienation Syndrome (sometimes by other names) to give custody to the abuser and deny normal contact with the protective mother. Some courts impose reunification therapy on the children who are taught that their dislike of their father is not because of his history of abusing them and their mother but because of the lies she has told them. Again at a time when they need therapy to heal from their father’s abuse and the separation from their primary attachment figure, they must instead engage in therapy based on pretend alienation issues. These practices work well for the bank accounts of mental health professionals, but poorly for children.
Most court professionals have been trained to view contested custody cases as “high conflict” by which they mean the parents are angry at each other and act out in ways harmful to their children. Current research, however, establishes that most of these cases are actually domestic violence cases. Fathers with a long history of abuse seek custody as a way to gain access to their victim to pressure her to return or punish her for leaving. Court professionals unwittingly assist these tactics by pressuring the mother to interact and cooperate with her abuser instead of pressuring the father to stop his abuse. The normal fear, emotion and reluctance to cooperate with a man they see as dangerous is used to discredit and punish the mother. Using the “high conflict” lens makes it harder for court professionals to recognize the father’s abuse and to take it seriously.
Few court professionals have been taught about the dynamics of domestic violence or how to recognize it. We regularly see court professionals discredit domestic violence complaints for reasons that are not probative such as when women return to their abuser, withdraw protective orders or don’t have police or medical reports. The women do this for safety and other reasons, but if the professionals treat this kind of information as if it were proof of false allegations, they have no chance to recognize valid complaints. At the same time, these professionals are often only looking at incidents of physical abuse. Accordingly they fail to see the patterns of controlling and coercive behavior. They don’t pay attention to economic control, isolating behaviors, emotional abuse, monitoring their partner’s behavior or information about the abusers’ motivation. Once courts determine through these flawed practices that the domestic violence allegations are false, they generally refuse to consider additional evidence or events that support the allegations and severely retaliate against mothers who continue to believe their allegations. Significantly, when courts do recognize the father’s abuse, they rarely if ever penalize him for continuing to deny his abuse.
The pretend world created by the custody courts is supported by the popular myth that women frequently make false allegations of abuse to gain an advantage in the litigation. A new Department of Justice study led by Dan Saunders of the University of Michigan found that court professionals without adequate training in domestic violence are more likely to believe this myth and in turn make recommendations harmful to children. The myth greatly contributes to the frequent mistaken findings we see in custody courts where valid allegations of domestic violence are disbelieved. Widespread gender bias also contributes to the inaccurate decisions.
Custody courts do their worst job in responding to allegations of sexual abuse of children. Although a majority of allegations made by mothers are accurate, 85% of the cases result in custody for the alleged abuser. Even attorneys with little knowledge of domestic violence and child abuse routinely advise clients not to raise sexual abuse allegations, even with strong cases, because the courts are so reluctant to believe a father could commit such a heinous act. Sexual abuse against young children is particularly hard to prove because it is committed in private for obvious reasons and children often do not have the language to describe what their father did to them. Although many court professionals expect physical proof, most assaults do not leave physical evidence and when they do it may be gone by the time the child works up the courage to reveal the abuse. Older children often recant true allegations because the abuser has threatened to hurt them or their mother or because they don’t want someone they still love to get in trouble. Poor investigation methods by often inadequately trained professionals also impede proof of sexual abuse. When allegations are made by mothers the most likely circumstance is the allegations are true. The next most likely is that the accused did not abuse the child but engaged in boundary violations that made the child uncomfortable. Other common possibilities are that the allegations are false, but made in good faith or that the evidence is equivocal, but court professionals routinely focus on deliberately false allegations even though this is the least likely cause for the allegations. The result of these flawed practices is that courts often deny valid allegations of sexual abuse and conduct the rest of the case based upon the fiction that there is something wrong with the mother for trying to protect her child.
These common mistakes in domestic violence and child abuse cases lead to a pretend world promoted by the abuser and supported by the court in which the case is conducted based on the fiction that the mother’s allegations are false. Any attempt by the mother to provide additional information of the father’s abuse is treated as a lack of cooperation for which she is severely punished. Her only hope to have some minimal time with her children is to prove she no longer believes the true allegations she made. In other words she is back in a pretend world that she hoped to escape by leaving her abuser. Even worse, now he has complete control, supported by the court and she is not even near the children to try to protect them when he acts in a dangerous manner.
In the typical contested custody case the mother is the primary attachment figure for the child and complains about the father’s domestic violence and/or child abuse. The father counters with claims of alienation. The primary attachment figure is the parent or other caregiver who provides most of the child care during the first couple of years of a child’s life. When a child is separated from their primary attachment figure, the child is more likely to suffer depression, low self-esteem and to commit suicide when older. Accordingly it makes no sense to do this unless the primary attachment figure is unsafe such as if they were a drug addict or beat the child. At the same time children who witness domestic violence are more likely to engage in a variety of harmful behaviors when they are older and their normal development is impeded which can cause lifetime of harmful effects. Alienation is a nebulous term which is often alleged in a generalized way. The most likely outcome of false negative statements is that it harms the relationship with the parent making the false statements. There is no research that demonstrates long term harm to children from alienating behaviors. Claims of primary attachment are almost always true as in our still sexist society mothers continue to provide most of the child care particularly in the first years of a child’s life. In many cases the father does not contest the issue or the work schedules of the parents make it clear who was the primary attachment figure. Mothers’ allegations of abuse are rarely deliberately false (in cases of child sexual abuse inaccurate complaints could be made based on the behavior of the child), so the complaints tend to be reliable. Alienation claims by fathers in contested custody cases are often part of a standard abuser tactic to deflect claims of abuse. Research such as the study led by Nicholas Bala establishes that fathers in contested custody cases are sixteen times more likely to make deliberately false complaints. The complaints by mothers are more important to the well being of children and far more likely to be true than father’s complaints and yet in contested custody cases fathers receive custody or joint custody between 70 and 83% of the time. Clearly courts are not making decisions based upon the reality experienced by children or approaches that benefit children.
The worst custody decisions provide custody to the alleged abuser and supervised or no visitation to the safe, protective mother who is the primary attachment figure for the child. These decisions are virtually always wrong because they are based on punishing the mother for believing the father is dangerous and not on concerns for the well being of children. The findings are usually wrong because of the flawed practices, but the outcome would be wrong if the findings were correct because courts rarely weigh the harm they are causing with whatever benefit they seek to create. The harm of denying the child their primary attachment figure is far greater than any benefit the court believes it is providing. Significantly, we rarely see evaluation reports or court decisions that weigh the benefits and harm of a decision they are considering. This is the kind of result we see when courts fail to consider current scientific research in their decisions. Judges may believe the mental health professionals involved in the case provide this expertise, but the professionals relied on by the courts are rarely familiar with current scientific research and courts don’t disqualify or even discredit evaluators and other mental health professionals for being unfamiliar with current research.
Mothers partnered with abusive fathers are in an impossible situation. If they fail to protect their children from the dangerous abusers, they can lose custody for failure to protect. The mothers hear repeated messages that they should leave him, but when they do and try to protect their children, they are punished for interfering with the relationship between the children and the abusive father. The result is too many courtrooms in which courts recreate the pretend world the mother sought to escape.
In fairness to the custody courts, they were forced to develop practices to respond to domestic violence cases at a time when no research was available. Many other entities were slow to understand the best ways to respond to domestic violence. Police officers were trained for many years to separate the parties when called to a home and have the abuser walk around the block to calm down. Eventually they switched to a pro-arrest policy after research demonstrated this practice was ineffective. Domestic violence homicides were reduced as communities moved towards practices designed to hold the abuser accountable. Even domestic violence agencies have not always been as supportive of protective mothers as they deserved, but with the increase in Custody-Visitation Scandal Cases and increase in domestic violence homicides as a result of mothers staying with their abusers because of the dangers created by custody courts, the domestic violence community has made child custody an important priority. It has taken a while for academicians to realize the harm in common custody court practices. Initial research supported shared parenting, but more comprehensive research has demonstrated shared parenting is harmful to children even when there is no domestic violence, but too often it is used in domestic violence cases because court professionals have difficulty in recognizing domestic violence. Current scientific research confirms complaints by protective mothers that the custody courts are mistreating them and harming their children. Government agencies now seem to understand the custody courts are harming children. Their understanding is based upon the research now available. The problem is that child custody issues have historically and constitutionally been left to the states and their courts.
Psychologists and other mental health professionals engaged in research have come to understand the harm of the standard practices in domestic violence custody cases. Most mental health professionals are not involved in the custody court system, but have failed to impose ethical standards on mental health professionals involved in questionable practices in the custody courts. The professional associations have permitted ethically challenged psychologists and other professionals to make recommendations unsupported by current scientific research, engage in biased practices that favor abusers and make diagnoses that are not found in the DSM IV because they don’t exist. Although ethical considerations would require the professionals to consult with experts on subjects in which they don’t have expertise, like domestic violence, the professionals in custody courts routinely fail to consult domestic violence experts, wrongly believing they have this expertise. This has led to frequent mistakes in domestic violence custody cases. These unqualified mental health professionals have played an important role in misleading custody courts and creating an illusion that there is a scientific basis for the mistaken practices commonly used in custody courts.
Judge Sol Gothard often trains other judges because of his expertise in domestic violence and child abuse. He was featured in the PBS documentary BREAKING THE SILENCE: CHILDREN’S STORIES. He wrote that if the courts had commissioned a study on how the present practices are working, they would have found the research contained in DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY. This research demonstrates that the present practices are working poorly for children. The outdated and discredited practices routinely relied on by custody courts lead to the pretend world of custody courts we have discussed in this article. We must encourage judges and other court professionals to be open to the current scientific research and stop closing their eyes and ears to information that undermines their long-held beliefs and assumptions.
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A Cancer Spreading in the Custody Court System
In domestic law on July 24, 2011 at 1:04 pmThe concept of Custody-Visitation Scandal Cases was developed because of the frequency of extreme results in custody cases in which children are endangered, safe, protective mothers are denied any meaningful relationship with their children and the results appear to be the opposite of what the evidence and the well being of the children would require. The Battered Mothers Custody Conference was started in response to what we believed were too many of these tragic cases to be viewed as exceptions.
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In one New Jersey case I have consulted on, the father has a long history of domestic violence and after the separation, the children disclosed sexual abuse. In this as in all the cases I will be discussing, the mother was unquestionably the primary attachment figure for the children. DYFS, the New Jersey child protective agency, investigated the allegations, but failed to confirm them. As a result, the father was given custody and as the protective mother continued to believe the father was dangerous, and challenge the professionals who failed to protect her children, she has been limited to supervised visitation.
In a well known Kansas case that I have discussed with the protective mother, the father has numerous convictions for domestic violence and other crimes and a poor relationship with the daughter. Despite this, the court gave custody to the father and imposed ever greater restrictions on the mother’s access to the daughter. The mother has been active in exposing the broken court system and the court has wasted large amounts of time and money seeking to remove information from the Internet and silence the mother’s concerns. The court has retaliated against the mother with reductions in visitation and a variety of sanctions.
In a California case, the mother left the father because of his abusiveness to the mother. Initially, the mother agreed to give the father unsupervised visitation, but as he continued his abuse and threatened to kill the baby, she sought to restrict him to supervised visitation. The judge decided she was a liar, awarded the father unsupervised visitation and threatened further action against the mother if the judge’s belief she was lying was confirmed.
In a Maryland case the protective mother also sought to leave her abuser and when he made threats to hurt the children sought a protective order. Shortly before the mother appeared in court, she had sex with her husband. The judge, not understanding that it would not have been safe for the mother to refuse, assumed this meant the father could not possibly be dangerous and granted unsupervised visitation for the father.
One of the problems we have seen repeatedly is that when a court makes a mistake and fails to recognize or respond to danger caused by domestic violence, they will rarely admit to these mistakes. Instead we see the kind of retaliation and punitive measures harmful to children that was used in the New Jersey and Kansas cases. Nevertheless, the courts in California and Maryland would now admit they made the wrong decision. The case in California involved Katie Tagle as the protective mother. The father used the access given him by the judge to kill Baby Wyatt and then himself. Similarly, in Maryland, the mother was Dr. Amy Castillo and the father used the access provided by the judge to kill their three children and then himself.
The judges in California and Maryland are deeply disturbed by the outcome and genuinely sorry for their mistake. At the same time, they have defended their decisions saying they couldn’t have known of the father’s danger based upon the evidence in front of them. In one sense they are correct. The judges in these four cases all used the same outdated and discredited practices including the popular myth that women often make false allegations in order to gain an advantage in litigation. This contributes to the widespread inability of custody courts to recognize domestic violence and in turn led to the mistakes in these four cases and other cases endangering over 58,000 children every year.
If all or even a larger portion of the bad decisions led to an immediate and recognizable tragedy like the cases in California and Maryland, the needed reforms would have been adopted long ago and children controlled by custody courts would be protected. Most of the time, however, the cases are more like New Jersey and Kansas where the harm is better hidden and not as dramatic for the public. The children grow up without their primary attachment figure, often suffer private but horrible abuse and many become involved in a wide range of harmful behaviors in response to the direct and indirect abuse inflicted by their abusers. Most will never reach their potential as a result of the mistakes made in the custody courts.
Many communities have developed a practice in which child protective agencies team with the local domestic violence shelter. They cross-train staff and when a possible domestic violence case develops, child protective caseworkers consult with domestic violence advocates. This has resulted in child protective agencies being able to better recognize domestic violence and respond in ways that benefit the children. This should be considered best practices. DYFS recently adopted these best practices, but the New Jersey case was first investigated under the old flawed methods. The protective mother has asked DYFS and the court to take a fresh look at the original findings based upon better practices and the new research, but they adamantly refuse to consider the possibility that they made a mistake while using the old discredited practices. The judge has refused to consider any new evidence based on the up-to-date research and insists on proceeding with the case based on the unlikely conclusion that the mother’s allegations are false.
As with many mistaken decisions, the mother has been pathologized by the unqualified professionals involved in the case. DYFS regularly uses the same mental health professionals who intuitively understand they are more likely to continue to be used by DYFS if they reach conclusions that support DYFS’ findings. There is substantial evidence of confirmation bias in the work of the “neutral” professionals relied on by DYFS and the court. Since they “know” the mother’s allegations are false and she continues to believe them, she must be “delusional” and therefore unfit for anything but supervised visitation. If she were delusional, it would stand to reason that this would present a problem in the rest of her life. These professionals have never stopped to consider how she can be successful professionally, academically and in all other phases of her life. Perhaps the DSM should include a new condition “delusional in the custody courts.”
At this point, the concern is that because she continues to believe the father abused the children (based on substantial evidence) and so if she had unsupervised visitation would say negative things to the children. This is the beginning and the end of the discussion by the unqualified professionals relied on by the courts. The mother is the primary attachment figure to her children, so separating her from the children creates a higher risk of depression, low-self-esteem and suicide. Where is the research that establishes what harm would be caused to the children if she made these statements and they were false? There is no such research, it is just assumed by professionals unused to looking for research to justify their beliefs and recommendations. How can we know if the alleged harm of the mother making statements about the father is greater than the established harm of taking children away from their primary attachment figure?
The Kansas case is similar in that they have long since ignored or minimized the very real danger the abusive father poses to the child and instead concentrate all their attention on the supposed harm the mother can cause by continuing to believe the father is unsafe and posting information on the Internet that helps to expose a broken court system. Judges are ethically required to avoid actions that create the appearance of impropriety or conflict of interest. Although they phrase the demand to remove material as if it benefitted the child, in reality the real purpose is to hide the history of abuse of the father and the failure of the court to act in the child’s best interests. Given the clear conflict of interest (they are seeking to remove materials that criticize the court), at the very least they would need convincing evidence that the mother’s beliefs would create a long-term harm to the child. Similarly, the removal of the mother from the child’s life, although she is the primary attachment figure creates a serious risk of harm to the child that the court has failed to address. Until the court can cite evidence or research to support its assumptions, the extreme actions present at least an appearance of impropriety. Ironically in both cases the courts put a high priority on placing the children with the parent it viewed as most likely to promote a relationship with the other parent, but when the abusive fathers sought to deny the children a meaningful relationship with the parent the children most need (the primary attachment figure), the same priority of keeping both parents in the children’s lives was no longer paramount. This is a common mistake in the custody courts and is one example of the widespread gender bias faced by mothers. In fairness, court professionals are often oblivious to the gender biased approaches they use, but tend to get angry and retaliatory when it is pointed out to them.
I believe it is outrageous that the custody courts have not made children’s safety the first priority. In the California and Maryland cases where there was evidence of a history of domestic violence and threats to kill the children, the court had time for only a brief hearing and refused to protect the children’s safety resulting in their deaths at the hands of their fathers. At the same time, In the New Jersey and Kansas cases the courts seem to have unlimited time and resources to investigate the “danger” the children might hear their mothers’ concern for their safety and well being.
Certainly there are mothers whose contact with the children needs to be limited. This would be in cases where there is a genuine safety risk such as a mother who is a drug addict, physically abuses the children or has a mental illness so severe as to make her unsafe to care of the children. In the absence of such safety issues it is virtually always wrong for courts to take the extreme action of barring unsupervised visitation. This is certainly true when it is done in the context of mothers trying to protect their children from fathers they believe are unsafe. The research establishes that because of the outdated and discredited practices court professionals routinely use, a large majority of findings denying the mothers’ allegations are mistaken. Even when her allegations are untrue, it is unlikely the risk she will make negative comments about the father is more significant than the harm of taking a primary attachment figure out of the children’s lives. In other words the harm to the children of these visitation restrictions is almost always greater than the harm the court thinks it is avoiding.
This was explained by Joan Zorza in her chapter in our book, DOMESTIC VIOLENCE ABUSE and CHILD CUSTODY, chapter 14 page 26. “Otherwise as shown in many parts of this book, courts often make mistakes that place the lives and safety of protective mothers and their children in jeopardy. In this context, it is important for courts that rule against alleged victims of DV to be open to the possibility that they made a mistake. Courts should be reluctant to take punitive or retaliatory actions against mothers who continue to believe their partners abused them.” The courts in Kansas and New Jersey could have saved the children a lot of harm (and still can) by following this advice based on the most up-to-date research available.
The elephant in the room is the issue of corruption. Every time courts make decisions that appear to have no relationship to the evidence presented and make orders that cannot possibly benefit the children involved, they create the appearance of corruption. When courts seek to silence protective mothers and retaliate for criticism of the court or their abuser, they are promoting the belief that only corruption could explain these extreme and harmful decisions.
There are cases decided by corruption. The Judge Garson case in Brooklyn, New York is a prime example and his early release from jail after conviction further harmed the courts’ reputation. More commonly mental health professionals and some attorneys have adopted beliefs and practices that favor abusers because that is where the money is. Nevertheless, I believe the research establishes that most of these bad decisions are caused by outdated and discredited practices that are deeply ingrained after all these years. In my career, I have seen many good people who I like and respect use these practices and come to extremely harmful conclusions. It is important, however that the legal system open its eyes to this problem, review the new research and stop acting defensively to the justified criticism.
In the summer of Watergate, John Dean testified that he told Nixon about a cancer on the presidency. His assumption was that the illegal and unethical practices were committed only by Nixon’s aides. It turned out that Nixon himself was the cancer on the presidency and had to be removed. Today there is a cancer on the custody court system. Some children are dying and others have their lives ruined by unjustified and extreme decisions. Rita Smith, Executive Director of the National Coalition Against Domestic Violence wrote in her Afterward to our new book that once the book is published anyone who continues to use the old practices must be understood to be committing malpractice. The four cases discussed in this article were originally decided based upon the old discredited practices. It is too late to save the children in California and Maryland. This is what happens when inadequately trained professionals rely on the myth that women frequently make false allegations. We can still help the children in New Jersey and Kansas by taking a fresh look at the cases based on the up-to-date research now available. The court system is at a crossroads. It now has the research to reform its training and practices so that they can better protect all the children. I hope they will treat the research as a gift and not an attack and use it to remove the cancer on the court system. In doing so the court system can support my view that the mistaken decisions are not based on corruption.
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HOW DO WE KNOW CUSTODY COURTS ARE SENDING CHILDREN TO LIVE WITH ABUSERS?
In domestic law on June 16, 2011 at 1:19 pmMothers and domestic violence advocates have been complaining for many years about problems in the custody court system that have resulted in large numbers of children being sent to live with abusive fathers while safe, protective mothers are denied any meaningful relationship with their children. Courts have tended to dismiss the complaints by referring to the mothers as “disgruntled litigants.” As more concern about the problem has been expressed and more research performed, the mothers’ complaints have been confirmed.
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The Pretend World of Custody Courts
In domestic law on June 16, 2011 at 1:16 pmAmplify’d from timesupblog.blogspot.com
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Small Justice-Little Justice in Americas CourtS
In domestic law on June 16, 2011 at 12:11 pmGarland Waller Productions
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MOTHERS DEMAND CHANGE IN FAMILY COURTS DURING PRESS CONFERENCE IN WASHINGTON, D.C.
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The “Father’s Right’s” Movement: How to Legally Stalk, Harass,THROUGH THE COURTS
In domestic law on June 2, 2011 at 6:30 pmThe “Father’s Right’s” Movement: How to Legally Stalk, Harass,and Intimidate Victims of Domestic Violence after a Restraining Order has been Issued
STALKING THROUGH THE COURTS by Janet Normalvanbreucher
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Table of Contents:
Differentiating Legitimate Fatherhood Groups from Illegitimate “Father’s Rights” Groups
The “Father’s Manifesto” – A Political Platform to Repeal the 19th Amendment
– Father’s Manifesto Signatories
How the Father’s Right’s Movement Hurts Men with Legitimate Disputes
Mein Kampf — Indoctrination Tactics of The Father’s Rights Movement
Are Restraining Orders Widely Abused by Women as a Tactical Maneuver in a Divorce?
– if Psychologists Discredit this Theory, Why Is it So Widely Accepted by the Courts?
– Screening of Pro-Se Lawsuits, Criminal Charges, Motions for Reconsideration
– Criminal Sanctions for Filing Frivolous Charges with State Administrative Agencies
– Tighter Enforcement of Stalking Laws
– Rule 11-type Pro-Se Sanctions for Abuse of Process
– Prosecuting Groups who are Practicing Law Without A License
– Law School Programs – Helping the Victims Fight Back
– Lawsuits against FR Groups under the VAWA as Unincorporated Associations.
– Legislative Action
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Claudine Dombrowski
Battered Mothers - A Human Rights Issue 